Boilerplate: The Foundation of Market Contracts
Cambridge University Press, May 21, 2007 - Law
Boilerplate, the fine print of standard contracts, is more prevalent than ever in commercial trade and in electronic commerce. But what is in it, beyond legal technicalities? Why is it so hard to read and why is it often so one-sided? Who writes it, who reads it, and what effect does it have? The studies in this volume question whether boilerplate is true contract. Does it resemble a statute? Is it a species of property? Should we think of it as a feature of the product we buy? Does competition improve boilerplate? Looking at the empirical reality in which various boilerplates operate, leading private law experts reveal subtle and previously unrecognized ways in which boilerplate clauses encourage information flow, but also reduce it; how new boilerplate terms are produced, and how innovation in boilerplate is stifled; how negotiation happens in the shadow of boilerplate, and how it is subdued. They offer a new explanation as to why boilerplate is often so one-sided. With emphasis on empiricism and economic thinking, this volume provides a more nuanced understanding of the 'DNA' of market contracts, the boilerplate terms.
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Table 42 Prevalence of dispute resolution provisions
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agreements ambiguous analysis arbitration clauses backﬁre bargaining beneﬁcial boilerplate terms beneﬁts boilerplate language boilerplate provisions boilerplate terms borrowers buyers cardholder choice of forum choice of law collusion competitive consumers context contra proferentem contract terms contracting parties courts credit card creditor customers deal default deﬁnitions difﬁcult disclosure drafters DRCs economic effects efﬁcient enforce EULAs ex-ante example ﬁnancial ﬁnd ﬁne print ﬁrm’s ﬁrms ﬁrst for-proﬁts forgiveness forum clauses forum selection clauses hold-up identiﬁed incentive increase industry inefﬁcient inﬂuence interpretation ISDA issuers jurisdiction law clauses litigation mandatory meaning modiﬁcation modularity negotiation nonproﬁts OEMs opportunistic pari passu particular payment potential preapproval price discrimination problem proﬁts reasons reﬂect regulation reputation require result risk rules seller-friendly sellers signiﬁcant sophisticated speciﬁc standard terms standard-form contract standard-form terms strategy sufﬁciently sumers tier-1 suppliers transaction costs types unconscionability understand universal default users warranty